The Defendant, Jacobson, had ordered and received from a bookstore two Bare Boys magazines containing photographs of nude preteen and teenage boys. Subsequently, the Child Protection Act of 1984 made illegal the receipt through the mails of sexually explicit depiction of children. After finding Jacobson's name on the bookstore mailing list, the Government sent mail to him to explore his willingness to break the law. Some mailings claimed a desire to promote sexual freedom through lobbying efforts. Some mailings discussed concerns regarding censorship. After 26 months of Government mailings it finally solicited Jacobson to order child pornography. He was arrested after a controlled delivery of the magazine ordered, but a search of his house revealed no materials other than those sent by the Government.
The Court, in agreeing with Jacobson that he had been entrapped, stated that the Government failed, as a matter of law, to show any predisposition on the part of Jacobson to commit the crime charged. The fact that no material other than that mailed by the Government, and the two Bare Boys magazines purchased when it was not illegal to do so, was found in Jacobson's home was significant. The Court concluded, "when the Government's quest for conviction leads to the apprehension of an otherwise law abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene."
Undercover operations should not be designed or implemented to induce innocent citizens to commit crimes. Entrapment occurs when the operation traps the "unwary innocent" as opposed to the "unwary criminal." Courts have the unenviable task of determining, after the fact, whether or not a person had a criminal predisposition before committing the crime. Law enforcement officers must avoid any form of inducement or they will be subject to the sting of entrapment.
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